The Repeal Amendment: Good Intentions, Wrong Solution

By: Jim Vetter

The Repeal Amendment

- Good Intentions, Wrong Solution

Overreach by the Federal government beyond expressly enumerated powers in the Constitution is the defining issue in today’s grass-root movement.   This overreach is done by the administrative and legislative branches and enabled by the judiciary.  We know the problem.  The question is what is the rightful solution?

One idea put forth is the “Repeal Amendment”.  This is a proposed amendment to the Constitution with the following wording:

“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”

It appears appealing- a constitutional protection that allows repeal of unconstitutional federal laws.  However, as the saying goes the road to hell is paved with good intentions.

The States Already Have the Power

An amendment to the Constitution is not needed.  The States already have the power to “nullify” unconstitutional federal over-reach.  In 1798, Thomas Jefferson and James Madison drafted the Kentucky and Virginia Resolutions in opposition to the Alien and Sedition Acts.  Adams and the federalists passed the Acts to suppress criticism of the President and Congress.  Madison and Jefferson contended that the Acts were void as they were unconstitutional.  Further, this determination could be made by individual States under the compact agreement between the States that created the Federal government as its limited agent.  Given that Jefferson and Madison are the fathers of the Declaration of Independence and the Constitution, this concept of State nullification has high pedigree and legitimacy.  This topic is covered extensively by Thomas Woods in his book “Nullification”, and at the 10^th Amendment Center.

Some argue that the ultimate arbitrator is the US Supreme Court under Article III of the Constitution especially given the Marshall court’s Marbury decision.  However, James Madison was quite clear in the Madison Report of 1800 that the Supreme Court is the final arbiter among the branches of the federal government, but is not final arbiter regarding matters between the States and the agent it created- the Federal Government.  Thomas Jefferson repeated these same sentiments during his lifetime.

Although most have never been taught this history and we have largely strayed from exercising these State powers, it does not mean that we cannot reassert these powers.  These powers have been used and are currently being asserted by many courageous States, including:

• Wisconsin’s righteous refusal to acknowledge the Federal Fugitive Slave Act and the supporting Supreme Court ruling requiring escaped slaves to be returned to slave-holders prior to the Civil War,
• California’s Medical Marijuana law and practices,
• Twenty five states passed legislation opposing the Federal Real ID Act and are not implementing the law,
• Seven States have passed Health Care Freedom Laws to oppose of “ObamaCare”, and legislation is pending in 16 other States.

Impracticality of a 2/3^rd Hurdle

Current powers allow individual States to say “no”.  The proposed Repeal Amendment requires 2/3rds of the States.  This hurdle effectively creates a new, higher threshold.  Therefore, it limits our existing freedoms and liberties and does not expand it. Realistically, how likely is it to get 2/3rds of the States to agree?  Maybe under the right conditions once in a blue moon but probably not very often.  This proposed Amendment would be a tool that will rarely be effective.

Law of Unintended Consequences

Supporters of the proposed amendment may contend that this amendment supplements existing Constitutional liberties.  However, we know too well how the very words we hope will protect us are used in the future against us.   Interpretations around the general welfare and commerce clauses are classic examples.  And promises are promises.  The Federalists promised anti-federalists that the Constitution would expressly limit Federal power at the time the Constitution was debated during ratification.  Despite those promises, the Federalists promptly moved to extend Federal powers after ratification, and the rest has been the history.

This proposed Amendment will likely be twisted and be used to assert primacy and overrule existing State powers and remedies.  This is the very nature of the problem – how well-intended language is reinterpreted and misused to limit liberty and expand central powers.   Is this a chance worth taking given the track record in Washington?

The Rightful Solution

The proposed Repeal Amendment is well intended but impractical and harmful.  It will divert valuable energy and focus away from solutions at the State level.  The States have the power to say “no”.  We need to enforce the existing Constitution from our State Capitols, and not amend the Constitution.

-Jim Vetter is an Independent within the grassroots and resides in Pennsylvania

If you enjoyed this post:
Click Here to Get the Free Tenth Amendment Center Newsletter,

Or make a donation to help keep this site active.

This entry was posted on Saturday, December 11th, 2010 at 3:36 am. It is filed under Articles and tagged with Amendments, Repeal Amendment. You can follow any responses to this entry through the RSS 2.0 feed.